Commonwealth v. Knight, M., Aplt. ( 2016 )

[J-69-2015] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 702 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on August 31, 2014 in the Court
: of Common Pleas, Westmoreland
v. : County, Criminal Division at No. CP-65-
: CR-0000851-2010. Post Sentence
: Motions Denied July 16, 2014.
MELVIN KNIGHT, :
:
Appellant : SUBMITTED: October 7, 2015
CONCURRING OPINION
JUSTICE BAER DECIDED: November 22, 2016
I join the majority opinion with the exception of Section V, and also write to
elaborate on a point supporting the grant of relief. I agree that Appellant is entitled to a
new penalty hearing as the Commonwealth conceded on the record that he had no
previous criminal history, yet the jury declined to find the mitigating circumstance of no
significant history of prior criminal convictions. 42 Pa.C.S. § 9711(e)(1). This
disposition emanates from our decision in Commonwealth v. Rizzuto, 777 A.2d 1069
(Pa. 2001), which held that “where a mitigating circumstance is presented to the jury by
stipulation, the jury is required by law to find that mitigating factor.” Id. at 1089. The
Commonwealth’s explicit concession during closing argument that Appellant has no
prior criminal history is tantamount to a stipulation, thus, the mitigating factor has been
established as a matter of law, and the jury was required to find that circumstance and
consider it in the weighing of aggravating and mitigating circumstances.
As the Court did in Rizzuto, the majority frames its holding in terms of whether
the absence of the criminal record was “undisputed.” See Slip Op. at 14 (stating that
“[w]hen the absence of a [criminal] record is undisputed, the jury has no discretion but to
find the objective circumstance, and specifically include it in any weighing of
aggravators and mitigators.”); Rizzuto, 777 A.2d at 1089 (same). While I agree with
this general assessment, I write separately to elaborate on what constitutes an
“undisputed fact” in an effort to more thoroughly distinguish the established case law
relied upon by the Commonwealth herein, which holds that a capital jury is not required
to find a mitigating circumstance, even if the Commonwealth fails to present evidence
rebutting the existence of that circumstance. See e.g. Commonwealth v. Diamond, 83
A.3d 119, 134-35 (Pa. 2013) (rejecting the contention that the fact-finder was required
to find the Section 9711(e)(3) mitigating circumstance when the Commonwealth
presented no evidence to refute the mitigating factor because a jury is free to believe all,
part, or none of the evidence presented).1
Here, the sole evidence supporting the Section 9711(e)(1) mitigating
circumstance was the testimony of Detective Verail that he examined Appellant’s
criminal history and concluded that Appellant had not been convicted previously of
felonies or misdemeanors. Absent the prosecutor’s explicit concession that Detective
Verail’s review of Appellant’s criminal history was correct, I am unconvinced that the jury
was required as a matter of law to find the Section 9711(e)(1) mitigating circumstance
because the jury was free to disbelieve the testimony presented, as a fact-finder has
exclusive authority to make credibility determinations. Diamond, 83 A.3d at 134. Stated
1
The mitigating circumstance set forth at 42 Pa.C.S. § 9711(e)(3) provides that the
defendant’s capacity to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was substantially impaired.
[J-69-2015] [MO: Dougherty, J.] - 2
differently, it was not the unrefuted testimony of Detective Verail that made the fact of
Appellant’s lack of criminal history undisputed, but rather the Commonwealth’s
concession in its closing argument that such fact was true. Accordingly, I agree with the
majority that the prosecutor’s concession is jurisprudentially indistinguishable from the
stipulation in Rizzuto, and, thus, established the mitigating circumstance as a matter of
law.
Additionally, I disassociate myself from Section V. of the majority opinion, entitled
“Other Issues,” which offers guidance to the trial court on penalty phase claims that
have become moot due to the grant of a new penalty hearing. It is well-established that
“[w]here the issues in a case are moot, any opinion issued would be merely advisory
and, therefore, inappropriate.” Stuckley v. Zoning Hearing Bd., 79 A.3d 510, 519 (Pa.
2013) (citations omitted); see also Commonwealth v. Moore, 860 A.2d 88, 100 (Pa.
2004) (holding that where a defendant is granted a new penalty hearing, all remaining
penalty phase issues are rendered moot). Here, the majority expounds upon claims
involving the admissibility of evidence during the penalty phase, while acknowledging
that the trial court is not bound by the Court’s suggestions in this regard. Slip Op. at
n.12 (stating that “[o]ur discussion of these issues should not be read as expressing any
view on them, or on sub-issues we do not discuss”). While the majority finds that such
issues “provided cause for concern,” Slip Op. at 20, there is simply no justiciable case
or controversy warranting further comment on remaining penalty phase issues when
Appellant has been granted a new penalty hearing.
[J-69-2015] [MO: Dougherty, J.] - 3